Given the importance of the rights at stake (the right to life, the prohibition of torture and cruel treatment and the right of individual petition as such) it is crucial that states respect provisional measures by human rights adjudicators. Many factors play a role in compliance and it is often difficult to disentangle them. Yet it is clear that whatever reasons states may have for occasionally disrespecting provisional measures, in those cases they will try to legitimise their own actions and at times even to undermine the standing of the provisional measures or of the adjudicator ordering them. This article discusses the concept of provisional measures, including their purpose and the convergence in their use by the various adjudicators. It argues that human rights adjudicators, other authorities and NGOs are in the best position to follow up on non-compliance if the provisional measures ordered are as persuasive as possible. For a great part this persuasiveness hinges on the nature of the rights to be protected by provisional measures. ‘Core rights’ play a key role in the decision whether or not to order such measures. Moreover, core rights underlie the convergence in decision-making on the binding nature of provisional measures. In addition, this binding nature in itself obviously enhances the persuasive force of provisional measures. Moreover, it is argued in this article that in most human rights systems maintaining persuasiveness also means maintaining a relation to the claim on the merits. In other words, provisional measures cannot yet be seen as a free-standing tool. This is particularly important in the European system, where certain states appear to be intent on undermining the Court's authority to order provisional measures.

Article 53 of the Vienna Convention on the Law of Treaties provides that a treaty is void if it conflicts with jus cogens. It is theoretically possible that two or more states would conclude such a treaty, yet this is not very likely in practice. The question thus arises how jus cogens operates outside of Article 53 situations and outside of treaty law in general. A ‘trumping effect’ of jus cogens over all other norms of international law has been proposed in some writings and judicial decisions. Such views have been shattered by the ICJ, most recently (but not exclusively) in Germany v. Italy. Jus cogens seems to be back to Article 53 and its (rather theoretical) voiding powers. Considering the latest judicial decisions, this article aims to place jus cogens within the international legal system. It demonstrates that jus cogens is not a futile concept; but it is wrong to see it as a trump card.

On 21 October 2005 the EC Regulation on European Enforcement Order for uncontested claims became applicable. According to this Regulation a judgment of a court of a Member State can be certified as a European Enforcement Order in the Member State of origin. A certified judgment is to be enforced in another Member State without any need of an intermediate procedure for recognition and enforcement. The exequatur procedure from the Brussels I Regulation is abolished in certain cases. In the Member State of enforcement there are only very limited possibilities of refusal of enforcement of a certified judgment. In this article the Regulation is discussed, as well as the further possibilities of simplification of cross border enforcement of civil judgments in the European Union. It is argued that for a further simplification of cross border enforcement a harmonization of the procedural laws of the Member States is necessary.

In spite of the startling technological strides in the field of weapons, and the resultant capability for nations to wage a ‘push-button‘ war, small arms still feature prominently in international conflict. Whilst it could not be reasonably claimed that most casualties in modern, mechanised war result from the use of small arms, these weapons still make a significant contribution to the carnage, especially in today's low intensity warfare. ‘In Vietnam, half of the US casualties were to bullets, mostly fired by small arms’. Small arms have found some employment in every international conflict, major and minor.

On 17 May 1980 Mr. J. de Koning, the Minister for Development Co-operation, addressed a public meeting of the Independent Commission on International Development Issues in The Hague. The Brandt Commission, as it is otherwise known, had recently published a report which made various proposals for structural reforms in the economic relations between the developed countries and the Third World — also with the aim of breaking the almost hopeless deadlock the North-South dialogue had reached.

There have been times when public and private international law were closely related. As a means to solve conflicts of sovereign jurisdiction, conflicts law used to be considered as an integral part of the law of nations. Even after Savigny shifted the focus of private international law from the spatial reach of national law to the geographical ‘seat’ of a legal relationship, it was still thought that its rules were, or should be, endorsed by the international legal community. At the beginning of the 20th century, however, public and private international law started to drift apart. It is now generally accepted that states have no mutual obligation with regard to the solution of conflicts cases: private international law is basically national law.

Nevertheless, most states are still prepared to adapt their conflicts-of-law rules to universal standards. National differences were mitigated by the acceptance of party autonomy, proper law exceptions, and a reduction of the nationality principle. The methodological gap caused by the American ‘conflicts revolution’ is gradually being bridged by a more flexible, policy-oriented approach in Europe, and by a return to ‘rules’ in the United States. These developments tend to promote the adoption of universal rules and principles. As academic disciplines public and private international law may have gone their separate ways, but they are still united by their common history, their objectives, and, increasingly, by the universal acceptance of their standards.

Despite adoption by Regional Fisheries Organisations of numerous measures aimed at deterring, preventing and eliminating illegal, unreported and unregulated fishing, IUU fishing by vessels flagged in both member and non-member states continues. None of the reciprocal boarding and inspection schemes adopted by RFOs provides for a positive right of arrest, detention or prosecution by a non-flag state in the event the flag states fails or refuses to take such action itself. The law of countermeasures may, however, provide legal justification for at-sea measures including boarding, inspection and possibly arrest and prosecution by members of RFOs against non-flag vessels of both member and non-member states. Although by nature an exceptional remedy, where the criteria discussed in this article are fulfilled, countermeasures in the form of at-sea enforcement may be an effective, and legal, tool in the fight against IUU fishing.

A feature of the end of the Cold War has been the tendency in state practice to expand the right of lawful resort to force by introducing novel grounds for the exercise of the right of self-defence. These are an alleged right to use force in self-defence against armed bands, regardless of the precise involvement of another state in their activities and the introduction of a right of pre-emptive self-defence against likely threats to the security of a state. Action by armed bands is viewed as an autonomous instance of an armed attack, while at the same time the alleged right of pre-emptive self-defence marks a departure from the hitherto controversial concept of anticipatory self-defence by dispensing with the requirement of imminence of an armed attack. A factual assessment of ‘imminence’ is replaced by considerations of state security. This tendency in state practice faces the persistence by the ICJ to view the use of force as an inter-state phenomenon and to interpret resort to defensive action as narrowly as possible.

While the overwhelming majority of states do not practice anticipatory self-defence, believing that it would create a dangerous precedent, it is ironic that many scholars in the area support the idea of it. After September 11, the legality of anticipatory self-defence is attracting increasing support. What makes the matter worst is the pronouncement of a preventive style of self-defence in the National Security Strategy of the US, which goes far beyond the traditional concept of ‘anticipatory’ self-defence. The old doctrinal debate has resurfaced with stronger vigour. The present article is an attempt to re-appraise the debate and test the legality of anticipatory self-defence. The article objectively interprets Article 51 of the Charter in light of canons of treaty interpretation and explores customary international law of the time. It re-examines the Caroline formula and affirms that it had not been established as customary international law before September 11, owing to the lack of widespread and consistent state practice and opinio juris. The article concludes that although state practice after September 11 tends to condone the use of force against imminent terrorists attacks, Article 51 of the UN Charter is still a good law that can cope with the normal inter-state use of force. Despite the flaws of the United Nations, the Charter-based system of world order can very well serve the international community even in the context of the 21st century world order.

On 4 December 1986, the United Nations General Assembly adopted Resolution 41/128 which contained the Declaration on the Right to Development. The Declaration was a further attempt by the United Nations to develop a normative regime to deal with one of the most pressing issues of our day – underdevelopment. It was a logical culmination of a movement that started with the Charter of the United Nations and the Universal Declaration of Human Rights and continued through the period of the anti-colonial struggle. Once the right to self-determination was no longer challengeable as a political entitlement, attention shifted to its socio-economic corollary. In 1969, the UN General Assembly adopted the Declaration on Social Progress and Development. The different UN Development Decades were also meant to address the problems of underdevelopment and the ever-increasing gulf between developed and developing countries. In 1974, a major attempt was launched by the UN General Assembly to change certain basic aspects of international law in the hope that this would lead to a new international economic order. Those efforts are yet to be substantially rewarded.

Grotius may be considered as the founder of the modern theory of international law and of the modern humanist theory of natural law. His famous work De hire belli ac pads libri tres, first published in 1625, combined an elaboration of his contributions, which formed the foundation to both these theories.

It so happens that this is the 25th anniversary of the adoption of the Treaty on Legal Principles Governing die Activities of States in die Exploration and Use of Outer Space including die Moon and other Celestial Bodies. On 19 December 1966 die General Assembly of die United Nations unanimously adopted a resolution commending the Treaty; on 27 January 1967 the Treaty was signed simultaneously in Moscow, London and Washington. As one who presided over die work of die Legal Sub-Committee leading to die conclusion of that Treaty it may be timely for me to recall some of the events and developments preceding its adoption.

This article examines the importance of compulsory licensing – using a human rights lens – to facilitate access to life-saving medications for Africans and its use after the historic decision at Doha in 2001 (popularly called ‘Doha Declaration’). It further considers the August 2003 Decision of the Council for TRIPS and the subsequent December 2005 amendment of the TRIPS Agreement in an attempt to resolve paragraph 6 of Doha Declaration. It submits that both are neither faithful to the spirit of Doha nor are they in line with provisions of human rights instruments, which guarantee the rights to health and life. Also, the article reasons that recent developments in the world on the use of compulsory licensing, such as the new Canadian legislation on this issue, have not in any way brought succor to Africans. The article further argues that in view of the above situations, particularly the failure of both the August 2003 Decision of the Council for TRIPS and its amendment of the TRIPS Agreement to find a lasting solution to the unresolved paragraph 6 of Doha, African countries may need to be creative in invoking other provisions of the TRIPS such as Article 31(k) so as to ensure affordable medicines for their citizens. The article then considers the likely tension that may exist between human rights and intellectual property rights, and submits that the obligations of states under the former should supercede the latter.

The International Commission of Inquiry on Darfur concluded in its Report, dated 25 January 2005, that no genocide had been committed by the Government of Sudan. From the Commission’s perspective, the heinous atrocities committed in Darfur did not reveal ‘the intent to destroy, in whole or in part, the African tribal population’ on the part of the Sudanese government. Apparently, the Commission found that the subjective element of the definition of genocide, i.e., genocidal intent, was not complied with in the case of Darfur. This article examines the extent to which the Commission’s conclusion that genocidal intent had been missing on the part of the Sudanese Government is sufficiently well-founded. The content of the part of the Report that considers the question whether or not there was genocidal intent is critically analysed in the light of the components of genocidal intent. While analysing the elements the Commission adduced to show the lack of genocidal intent, the author discusses each relevant element of genocidal intent at length and reveals that there are contending approaches as regards the level of intent that is required to establish genocidal liability. Arguments are presented that indicate why the purposeful standard which the Commission resorted to is debatable and attention is given to a broader interpretation of genocidal intent, i.e., the knowledge standard. By means of her analysis the author demonstrates that the elements the Commission brought forward are, in general, insufficiently convincing evidence to prove the absence of genocidal intent on the part of the central authorities. They appear to be too superfluous, contentious and legally weak.

Data protection is the body of law which secures for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him. It is an interesting case of a corpus of transnational law in the sense of legal rules which develop rapidly and simultaneously in municipal and international law, into a tissue binding together private and public entities across national borders.

There is a substantial body of norms of international human rights law, both in international conventions and customs. However, the international mechanism to enforce human rights world wide is rather weak. On the other hand, domestic courts have remained largely unutilized as concerns enforcing international human rights law. This is primarily owing to different state perceptions concerning the interrelation between international law and municipal law, and the resultant diverging views they take to implement norms of international law in the state territories. This tends to weaken the international human rights enforcement regime. There is a need to emphasize the legal and binding nature of international obligations and to involve domestic courts to ensure compliance. The importance of and contemporary movement for the protection and promotion of human rights has further underlined this need. The increasing recognition of individuals as subjects of international law, especially international human rights law, has added new dimension. Invoking international human rights law in domestic courts, therefore, merits special consideration. Factors of state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation, appear to be impediments for direct application of international human rights law, for it is argued that as long as treaty-making is primarily executive prerogative, the legislature ought not to be by-passed in implementing treaties. However, to overcome these impediments, it is suggested that legislative approval precede ratification of treaties, or legislature effectively participate in the process of ratification. This will benefit the so-called ‘democratic deficit’ of the process of treaty-making, and facilitate direct application of international human rights law by domestic courts. Many countries of the world, especially in Continental Europe and Latin America, which hold a monistic view, are increasingly opting for this model of human rights compliance. This would greatly enhance the protection and promotion of human rights.

The question of defining self-determination and of determining the legitimacy of claims of self-determination have been issues which have exercised the minds of international lawyers and political scientists for many years. A considerable literature and diversity of views has resulted. From the reference in Articles 1(2) and 55 of the United Nations Charter to the development of “friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples” has sprung a whole body of United Nations and state practice in a number of widely differing situations. The main focus of activity has been in the area of decolonisation and this development has practically eclipsed Chapters XI–XIII of the Charter, which were clearly intended to deal with the emancipation of non-self-governing and trust territories. The seventeen words of Articles 1(2) and 55 have been elaborated in the 1970 Declaration on Friendly Relations. It is no overstatement to say that the elaboration of the principle of self-determination in the 1970 Declaration provides the cornerstone of the United Nations approach to the concept. The Declaration was the result of seven years work by a Special Committee and was adopted on a consensus vote. It is generally regarded as being normative in character by virtue of its elaboration of essential Charter principles. This elaboration seeks to state the nature of the right in general terms and to deal with the application of the rule in certain contexts; it is concerned primarily with decolonisation and with limiting claims to secession.

The principle of arbitration took roots and flourished in Latin America because of three principal reasons. Firstly, it was a necessity that peace should be maintained among the newly emancipated Republics, if their independence was not to be rendered precarious. In this sense the desire of these Republics to settle their international problems by pacific methods was in itself a product of their historical situation. Secondly, the spirit of confraternity engendered by the similarity in language, culture and religion aided the reception of arbitration as a mode of settling their quarrels. Finally from the earliest beginnings the leaders of the revolution, especially Bolivar devised projects to ensure that arbitration became the foundation-stone of American International Law.

The submission to the United Nations International Law Commission of the second Report on Succession of States in respect of matters other than treaties by the Special Rapporteur, M. Bedjaoui, has aroused marked turbulence in the otherwise serene deliberations of the Commission. This commotion may be partly due to the methods used by the Special Rapporteur in fulfilling the task assigned to him by the Commission, but it is also due, at least in part, to the subject dealt with, viz. the status of ‘acquired rights’ in cases of state-succession. In reading the proceedings, one is struck by the courteousness of Professor Tammes's remarks, which nonetheless leave no doubt as to the position he held in the discussion.